7.  The first applicant is a limited liability company incorporated under Netherlands law. Its business includes publishing the mass-circulation daily newspaper De Telegraaf. Originally called Uitgeversmaatschappij De Telegraaf B.V., it changed its name to Telegraaf Media Nederland Landelijke Media B.V. on 5 January 2011.
8.  The second applicant, Mr Joost de Haas, is a Netherlands national born in 1967 and resident in Bovenkarspel. He is a journalist.
9.  The third applicant, Mr Bart Mos, is a Netherlands national born in 1963 and resident in Ridderkerk. He too is a journalist.
10.  On Saturday 21 January 2006, the newspaper De Telegraaf published on its front page an article couched in the following terms:
“AIVD secrets in possession of drugs mafia
Top criminals made use of information
By Joost De Haas and Bart Mos
Amsterdam, Saturday
State secrets (staatsgeheime informatie), obtained from investigations of the Netherlands secret service AIVD [Algemene Inlichtingen- en Veiligheidsdienst, General Intelligence and Security Service] circulate in the criminal circuit of Amsterdam.
Complete investigations into the drugs and weapons dealer Mink K., who is labelled ‘a danger to the State’ (staatsgevaarlijk), are thus known to individuals concerned in the criminal world (onderwereld). This appears from documents and statements with which this newspaper has been acquainted.
It appears from the documents that the secret service has over a period of years carried out investigations and directed infiltrations relating to Amsterdam drugs criminals. The intervention of the service was prompted by, among other things, strong presumptions of the existence of corruption within the Amsterdam police force and the Public Prosecution Service (openbaar ministerie). For that reason the secret service decided, in the late nineties, to recruit an informant in close proximity to Mink K. According to this informant, corruption was so rampant that liquidations were actually carried out using weapons seized by the police.
Threat
It appears from the documents that the AIVD considered top criminal Mink K. to be a threat to the legal order, as he reserved millions each year to bribe police and prosecution service officials. In addition, K. was thought to have enormous stocks of weapons at his disposal, including large quantities of semtex and ‘hundreds of anti-tank missiles’. The links which K. was thought to maintain with terror groups such as Hezbollah and ETA were disquieting. The documents have been returned to the AIVD by De Telegraaf.
Incidentally, [the Ministry of] Defence yesterday reported the loss of a memory stick containing confidential information of the Military Intelligence and Security Service (Militaire Inlichtingen- en Veiligheidsdienst, MIVD).”
11.  On an inside page, the same issue carried an article by the same two authors giving details including the informant’s code name and that of a second informant operating in the periphery of the criminal organisation.
12.  The following day, Sunday 22 January 2006, De Telegraaf published an article, again naming Mr De Haas and Mr Mos as authors, in which it was suggested that highly secret information concerning the AIVD’s investigations had been made available to criminals including Mink K.
13.  In the evening of Sunday 22 January 2006 the public service television broadcaster NOS broadcast an interview with the then Minister of Justice (Minister van Justitie), Mr J.P.H. Donner, on the eight o’clock news. Minister Donner stated the following:
“So this is about people who may be involved in the AIVD who publish documents to the outside world in this way. That is what must absolutely be prevented. Of course it is afterwards to be deplored that State secrets find their way into the newspapers. Once again, I also find that De Telegraaf has cited [them] in very general terms and not directly. So as far as that goes, they have been circumspect in their use. But that is quite another matter. My point is that this kind of thing ought not to be made public.”
14.  On Monday 23 January 2006 De Telegraaf announced that the AIVD had lodged a criminal complaint concerning the unlawful disclosure of State secrets. The AIVD had reportedly stated that they had no proof that Mink K. had been able to bribe police and Public Prosecution Service officials, and that the documents in question had been leaked by an AIVD member.
15.  In the days that followed, De Telegraaf published further material including allegations that Mink K. had had meetings with Government ministers (as well as the latter’s denials).
16.  On 24 January 2006 the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) sent a white paper to the Speaker of the Lower House of Parliament (parliamentary year 2005-06, 29876, no. 11). It was stated that the predecessor of the AIVD, the BVD (Binnenlandse Veiligheidsdienst, National Security Service), had undertaken an investigation between 1997 and 2000 into allegations of corruption of public officials by Mink K. but that no such cases of corruption had come to light. It was not yet known how and when classified documents pertaining to this investigation had become known outside the BVD/AIVD, although there was thought to be no leak from within the police or Public Prosecution Service. De Telegraaf had reported that the documents, which had been circulating in criminal circles for some time already, had been obtained from criminal contacts and suggested that they had been leaked by serving or former agents of the BVD or AIVD. The documents which De Telegraaf had returned comprised an incomplete collection of raw data from which no conclusions could be drawn.
17.  Also on 24 January 2006 the Committee on the Intelligence and Security Services of the Lower House of Parliament was informed by confidential letter about the secret operational particulars of the investigation instituted by the AIVD.
18.  The matter gave rise to discussion in the Lower House on several occasions in the course of 2006. At the close of these, the Minister wrote to the Lower House on 20 December 2006. His letter concluded as follows:
“There has been what can properly be called a serious incident (Er is sprake van een ernstig incident geweest): a considerable collection of copied documents from a closed working file of the BVD has been taken out of the building in defiance of the rules. Operational AIVD research and research by the National Police Internal Investigations Department (rijksrecherche) indicate that this was probably done by a former BVD staff member, who would have had the opportunity to do so until August 2000. Possibly via third parties, the documents subsequently came into the possession of De Telegraaf, which published information about this in January of this year. I would point out that final conclusions about the way in which these compromising facts took place can formally be drawn only when the proceedings against the suspected former staff member have been brought to a close.
The compromised documents provide an insight into the BVD’s operational knowledge levels at that time within the task area of public-sector integrity and in the BVD’s working methods relating to that task area. Damage to investigations in process and the consequences of the working methods then in use (modus operandi) becoming known is relatively limited. Risks to agents and/or informants cannot however be excluded. Where necessary, operational measures have been taken to limit these risks.
A reassessment in the light of the security rules in force then and now shows that there is little to be gained from more regulation. Compliance and supervision of compliance with rules and regulations will however need to be strengthened. The updated security plan and internal communication on that subject will so ensure. Technical measures, such as the introduction of new security technology in authorised systems, and measures within the area of personnel management, such as the continuation of sound security investigations and reviews of new and existing staff, will also contribute to a further reduction of security risks. Extreme alertness to signals which might indicate security risks and better (social) control of non-security-conscious behaviour are indispensible in this connection.
I also conclude from the investigations that security which will completely prevent deliberate compromising [of secret information] is not achievable. It will never be possible to exclude that staff members who are authorised to take cognisance of State secrets and who deliberately seek to inflict harm will be able deliberately and unauthorised to carry State secrets outside the AIVD buildings by some means or other.
There has to be a balance between maximum security and an effective working process. Based on regulation and direction in compliance with regulation, among other things, risks of confidential information being compromised can be reduced to a minimum. Even so, a residual risk as regards the human factor will always exist.”
19.  On 26 January 2006 a detective chief superintendent of the National Police Internal Investigations Department (hoofdinspecteur van politie‑rijksrecherche) issued an order addressed to [a subsidiary of] the first applicant for the surrender of “document(s) and/or copy(ies), with State secrets concerning operational activities of the [BVD] and/or the [AIVD].”
20.  On 30 January 2006 the first applicant’s legal counsel entered into an agreement with the public prosecutor aimed at protecting the identity of the source of the information set out above for as long as was necessary for the Regional Court to assess whether the surrender order was barred for reasons of source protection. Since the originals of the documents in question (copies had already been returned) might bear fingerprints or other traces capable of identifying this person, they were placed in a container by a notary and sealed, after which the container with the documents was handed over to the investigating judge to be kept in a safe unopened pending the outcome of objection proceedings intended to be brought.
21.  The first applicant in fact lodged an objection with the Regional Court of The Hague by post on 23 February 2006 (received at that court’s registry on 28 February). Relying on Article 10 of the Convention, it invoked what it considered to be the journalistic privilege against the disclosure of sources. It argued in this connection, inter alia, that Mr De Haas and Mr Mos had exercised due care in that they had disclosed neither the identity of AIVD members or informants nor that service’s specific modus operandi or the current state of its information.
22.  A hearing in chambers (raadkamer) took place on 17 March 2006. The first applicant, in the person of its counsel Mr Le Poole, was informed by the presiding judge of its status of suspect in a criminal case and reminded of its right to refuse to answer questions; the applicants Mr De Haas and Mr Mos attended as interested parties. The first applicant offered to destroy the documents in question. The official record of the hearing contains the following, inter alia:
“The public prosecutor again addressed the court and stated, in brief, as follows:
- Examining the documents to discover their source is not the first priority, but if the opportunity arises it will certainly be used.
- Moreover, it is up to the AIVD to decide whether the documents which are currently held in the office of the investigating judge are indeed all the documents which the applicant may have had in its possession.
...
Counsel for the [first applicant] also stated, in brief, as follows:
- In view of the protection of the source the [first applicant] cannot afford to risk an examination of the documents.
- [The first applicant] has been restrained (terughoudend) in publishing information from these sources [i.e. the documents], it is known in any case that Mink K. has known their content for some time already, so that publication has not led to any serious danger.
- In my view the public prosecutor’s comparison with a firearm is inapposite. After all, [the first applicant] offers to destroy the documents immediately and is not interested in possessing them.
- [The first applicant] has never had an interest in the content of these documents. The fact that such sensitive AIVD information is circulating in criminal circles is a news item that should be made known. In this sense also [the first applicant] has fulfilled its role as public watchdog in a very circumspect fashion (op zeer omzichtige wijze).
The public prosecutor addressed the court once more and stated, in brief, as follows:
- The source who supplied the documents to [the first applicant] need not necessarily have been the leak within the AIVD’s organisation. Secret classified documents belonging to the AIVD vanished on a number of occasions over a given period, and the present documents could play a role in this investigation.
- It might indeed be possible to determine the identity of the source from an examination of the documents. However, in the context of the investigation into the leak within the AIVD, examination of the documents is not necessary in order to establish the identity of the leak since this can be done simply on the basis of the content of the documents concerned.
- The present documents should be returned to the State for the simple reason that they contain secret classified information which should not be circulated in the public domain. Until such time as it is established that the [first] applicant has indeed returned all the documents in its possession to the AIVD, destruction of the documents, as proposed by the applicant, should not be considered.
- Moreover, the [first] applicant has not observed complete restraint in relation to the publication of the documents. After all, there is no need to quote from them in order to indicate that they are in criminal hands.”
The applicants Mr De Haas and Mr Mos expressed themselves in support of the first applicant.
23.  The Regional Court gave a decision dismissing the objection on 31 March 2006. Its reasoning included the following:
“The fact that the seized documents may contain fingerprints which may lead the AIVD or the Public Prosecution Service to the [first applicant’s] source or sources does not lead the court to find otherwise. As the [first applicant] has correctly argued, Article 10 of the Convention also comprises the protection of journalistic sources in order to safeguard the right freely to gather news (recht van vrije nieuwsgaring). However, the Regional Court does not consider that that right has been violated in the instant case. The Regional Court stresses that the journalists concerned have not been required to give their active co-operation to the investigation into the identity of the source, but that in the instant case all that has been sought is the handover of material that exists independently from the will of the journalists and which, in addition, is the object of a criminal act. The Regional Court therefore considers that any sanctioning of the Public Prosecution Service’s actions in the present case will not hinder any future exchange of information – albeit perhaps in a different form – between the [first applicant] and its sources.”
24.  The first applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad), which on 25 March 2008 dismissed it in a decision containing the following reasoning:
“4.5  In considering that the documents seized originate from the AIVD and contain State secret information and are the object of the criminal act proscribed by Article 98c of the Criminal Code, the Regional Court has expressed the fact that the surrender order protects the interest for which that provision was enacted, namely the protection of State secrets.
Its subsequent consideration that in the present case the right to protect sources, covered by Article 10 of the Convention, has not been violated, encapsulates the finding that it is a weighty social interest that State secret information should not circulate in public and also that the interference with the right to source protection – which the Regional Court has clearly found to exist, as is not contested in this appeal – is to be considered justified in light of the circumstances of the case.
These considerations do not ... disclose an incorrect view of the applicable law, and are not incomprehensible in light of the proceedings in chambers. In so finding, the Supreme Court notes
(a)  that the case file does not admit of any other conclusion than that the documents seized contain State secret information about operational investigations of the AIVD into possible interaction between the criminal substratum and law-abiding society (verwevenheid van onderwereld en bovenwereld) for the purpose of preventing serious crime, this information being important in connection with the protection of the democratic legal order and liable to endanger national security and the safety of others if made public, and
(b)  that the objection adduced by the [first applicant] against surrender of the documents has been limited, as regards the measure of probability of disclosure of the source, to its fear that examination of the documents might lead to identification of the source because fingerprints might be found on these papers, in which connection the Public Prosecutor has stated that an examination of the documents, although possible, is not necessary to determine the identity of the leak within the AIVD, that already being possible using the contents of these documents, which are already known to the AIVD.”
25.  On 2 June 2006 the applicant’s counsel Mr Le Poole wrote to the Minister of the Interior and Kingdom Relations, with a copy to the head of the AIVD, demanding an end to all investigations and to the use of special powers against the second and third applicants, an undertaking to destroy all information so obtained and a further undertaking that any such information should not be used in criminal proceedings against the second and third applicants.
26.  On 6 June 2006 the Permanent Secretary (secretaris-generaal) of the Ministry of the Interior and Kingdom Relations, replying on behalf of the Minister, wrote to Mr Le Poole refusing to give such an undertaking. To confirm or deny the use of special powers would entail the disclosure of information on specific AIVD operations, such information having to remain secret in the interests of national security. It was noted in the Permanent Secretary’s letter that questions about the case asked in Parliament had been responded to similarly.
27.  On 7 June 2006 the three applicants, joined by Nederlandse Vereniging van Journalisten and Nederlands Genootschap van Hoofdredacteuren (see paragraphs 1 and 4 above), summoned the respondent State to appear before the Provisional Measures Judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague in summary injunction proceedings (kort geding). They claimed to be aware that the applicants De Haas and Mos had been subject to telephone tapping and observation, presumably by AIVD agents, from late January 2006 onwards. Such measures, in the contention of the applicants, lacked a legal basis, since the AIVD was using powers granted it by section 6 (2)(a) of the 2002 Intelligence and Security Services Act (Wet op de inlichtingen- en veiligheidsdiensten – see paragraph 51 below) to carry out duties set out in section 6(2)(c) of that Act. In the alternative, since clearly the target of the measures was the second and third applicants’ journalistic source and not the applicants themselves, basic requirements of subsidiarity and proportionality had been disregarded, the more so since the said two applicants were journalists and therefore entitled pursuant to Article 10 of the Convention to protect their journalistic sources. The applicants also claimed the protection of the second and third applicants’ private and family life, home and correspondence under Article 8 of the Convention. They sought, in essence, a provisional measure in the form of an order for the cessation of all investigations and the use of special powers against the second and third applicants, in so far as these related to the press publications referred to above; the destruction of all data obtained by their use; and an order preventing the AIVD from handing over the data to the Public Prosecution Service for use in criminal proceedings against the second and third applicants.
28.  The Provisional Measures Judge gave judgment on 21 June 2006. On a preliminary point, he ruled that the applicants’ claims for provisional measures were admissible in the civil courts since no alternative procedure offering a speedy resolution of the matter or any judicial remedy other than civil proceedings was available in law. Proceeding on the assumption that the AIVD had in fact made use of its surveillance powers – which the respondent had not confirmed or denied – he then went on to hold that such use was contrary to Article 10 of the Convention. He ordered provisional measures largely in the terms requested by the applicants.
29.  The State appealed to the Court of Appeal of The Hague. Again refusing to confirm or deny the use of surveillance powers against any of the applicants, they argued that the protection of journalists’ sources was not absolute and any conflict between the protection of journalistic sources and the protection of State secrets should be decided in favour of the latter. They also stated that the first, second and third applicants had gone beyond the needs of informing the public, especially by unlawfully retaining original copies of secret documents the possession of which was in itself a crime and in exposing the AIVD’s use of informants. Moreover, adequate safeguards existed in the form of the Supervisory Board for Intelligence and Security Services (Commissie van toezicht voor de inlichtingen- en veiligheidsdiensten, hereafter “Supervisory Board”), two of whose members including the chairman were members of the judiciary; the Supervisory Board exercised supervision on a regular basis but also entertained complaints, and in so doing had access to information denied the civil courts. It was stated that the Supervisory Board had begun investigations into the case at the request of the Minister of the Interior and Kingdom Relations.
30.  For their part, the applicants appealed on the ground that the Provisional Measures Judge had failed to find the AIVD at fault for misusing powers intended only for use against persons identified as “targets”, that is, who were themselves considered dangerous for national security.
31.  The Court of Appeal gave judgment on 31 August 2006. It held that the use of powers of surveillance against the applicants was not per se impermissible, even though the applicants might not be targets themselves. It accepted, in the face of the State’s refusal to declare itself on this factual point, that the first, second and third applicants had made out a credible case that powers of surveillance had been used against them. This interfered with their rights under Articles 8 (private life) and 10, and was unlawful in so far as the use of the powers concerned continued after the identification of a target other than the applicants, to whom moreover the need for source protection apparently did not apply. For the remainder it allowed the State’s appeal; the State was ordered not to hand any materials or copies thereof, obtained with the use of special powers, to the Public Prosecution Service as long as the Supervisory Board had not found those materials to have been lawfully obtained.
32.  Both the applicants and the State lodged appeals on points of law with the Supreme Court.
33.  The Supreme Court gave judgment on 11 July 2008. Its reasoning included the following:
“3.5.3.  ... The Court of Appeal was entitled to hold, without violating section 6 of the 2002 Intelligence and Security Services Act, that in view of the danger threatening the effectiveness and integrity of the AIVD as a result of a ‘leak’ within the security service itself, weighty State interests were at stake, and draw the conclusion that the AIVD’s investigations against the journalists were, at least initially, covered by sub-paragraph a. ...”
and
“3.7.3.  ... The Court of Appeal has not overlooked the fact that the interests of the Government invoking one of the exceptions set out in Article 8 § 2 and Article 10 § 2, if they are to justify such an exception, must tip the balance (zwaarder zullen moeten wegen) against the interests in maintaining the rights and freedoms guaranteed by those provisions. ... [The Court of Appeal’s finding] that ‘in view of the importance of the protection of journalistic sources to the freedom of the press in a democratic society and the possible chilling effect (afschrikwekkende werking) which results from the knowledge that the AIVD is using the said special powers against the journalists, ... such use is only justified by an undeniable need in the public interest (onloochenbare behoefte in het algemeen belang)’ unambiguously implies that the Court of Appeal, in applying its test, has had regard to the condition, formulated by the European Court of Human Rights, of an ‘overriding requirement in the public interest’”
and
“3.7.4.2.  Part 2.4.1. [of the applicants’ statement of grounds of appeal] complains that the Court of Appeal misapplied the law in that it did not find, on the sole ground of the extreme reticence in the use of special powers and their duration given the weighty interest of protecting journalistic sources ..., that the interference with Article 10 of the Convention was from the outset not justified by an ‘overriding requirement of public interest’, instead of [finding such to be the case] from the moment the AIVD caught sight of one or more other persons. The protection of journalistic sources thus becomes entirely illusory, since the AIVD, by starting its investigation with the journalist, will always be able to trace (a person leading closer to) the source, so it is argued.
This part fails, because it essentially purports to assume that the protection of journalistic sources is absolute. It is not. The protection of journalistic sources reaches its limits in, among other things, the protection of national security and the need to prevent the dissemination of confidential information, as set out in Article 10 § 2 of the Convention. The Court of Appeal, in stressing the importance of ‘extreme reticence in the use of special powers’, was right not to exclude [such measures].”
and
“3.7.4.3.  ... the Court of Appeal sufficiently specified the interest and the danger [involved] by stating, as the aim of the use of the special powers: the prevention of dissemination of the State secrets at issue by tracing the leak and the investigation, possibly also in order to protect the lives of others, of the consequences of publication of these State secrets.”
and
“3.7.4.5.  ... The counter-argument made by De Telegraaf and the other appellants that other means were available, namely that the AIVD might have asked the journalists to name their source, was rejected by the Court of Appeal on the ground, essentially, that the journalists would not have named their source in that case either precisely because they are doing their very best to keep their sources secret. The other defence submitted by De Telegraaf and the other appellants, that the AIVD could have awaited the outcome of the criminal investigation was rejected by the Court of Appeal by pointing out that the criminal investigation and the investigation by the AIVD are entirely unrelated to each other, by which the Court of Appeal meant to express that the two investigations pursue different aims and serve different interests, so that in order to answer the question whether the use of the special powers meets the requirement of subsidiarity the outcome of the criminal investigation is, in principle, irrelevant. ...”
and
“3.8.5.  ... The Court of Appeal has dismissed the primary claim under 2 (B) [i.e. the claim for an order preventing the AIVD from handing over the data to the Public Prosecution Service for use in criminal proceedings against the second and third applicants] because it could not determine which information had and which had not been lawfully obtained – meaning, plainly, on the basis of investigations what ... can be considered still lawful, or no longer lawful, vis-à-vis the journalists – and because it could not be ruled out beforehand that all the information collected had been obtained unlawfully, so that the Court of Appeal could not in reason determine what information ought to be discarded. This ground of the decision is not called into question in the statement of points of appeal, and rightly so, because the Court of Appeal had the latitude in summary injunction proceedings to find and decide thus.
It follows that the Court of Appeal has not made its decision dependent on the opinion of the Supervisory Board. ... Moreover, the Court of Appeal’s considerations do not exclude the possibility that De Telegraaf and the other appellants may, after the Supervisory Board has given its opinion, ... yet seek an order or a prohibition as here at issue from the civil courts, if by that time they still have such an interest and if in the opinion of the Supervisory Board (in so far as that opinion is public or made public afterwards in the civil proceedings) provides sufficient factual grounds for a reasoned ruling on such a claim.
For that reason the question whether the complaints procedure provided by the 2002 Intelligence and Security Services Act is an ‘effective remedy’ in the sense of Article 13 of the Convention need not be discussed.”
The Supreme Court dismissed both the applicants’ and the State’s appeals.
34.  On 15 November 2006 the second and third applicants appeared before the investigating judge (rechter-commissaris) of the Regional Court of The Hague to be questioned as witnesses in criminal proceedings against three individuals suspected of involvement in divulging to the outside world the State secrets here in issue. Both refused to answer certain questions, including at least those questions which would be capable of leading to the disclosure of the identity of the person from whom they had received secret AIVD documents.
35.  On 27 November 2006 the second and third applicants were again questioned by the investigating judge and persisted in their refusal. The three defence counsel, present at the time, asked the investigating judge to order the two applicants detained for failure to comply with a judicial order (gijzeling). The investigating judge so ordered.
36.  On 30 November 2006 the Regional Court of The Hague, sitting in chambers, ordered the applicants released. It recognised the importance of the protection of journalistic sources, as stated in the case-law of the Supreme Court (see below), and found that no issue of State security could arise since the fact of the documents having become available outside the AIVD had been made common knowledge in the media.
37.  The three defendants were put on trial before the Regional Court of The Hague on charges under Articles 98 and 98c of the Criminal Code (Wetboek van Strafrecht) (see below). The applicants have submitted a judgment of the Regional Court of The Hague convicting one of these persons (one H.) at first instance of the crime defined in Article 98 of the Criminal Code, in which it is mentioned that the documents seized from the first applicant were examined by the Netherlands Forensic Institute (Nederlands Forensisch Instituut) but that no traces were found.
38.  On 21 June 2006 the Minister of the Interior and Kingdom Relations informed the Lower House of Parliament that he had requested the Supervisory Board to investigate as a matter of urgency the lawfulness of the AIVD’s investigation into the leak. Its task was to cover the entire AIVD investigation into the leaking of secret classified information, including the alleged exercise of special powers in relation to the second and third applicants.
39.  On 15 November 2006 the Supervisory Board presented to the Minister a report containing its findings and its advice. This was classified State secret (Stg. Geheim, the second highest classification level for State secrets). The Government quote from it in the following terms:
“[Section 9(1) of the 2002 Intelligence and Security Services Act] provides that public servants of the AIVD do not have the power to conduct a criminal investigation. The AIVD is therefore not entitled to employ any special powers with the aim of a criminal investigation. The intelligence service may only use these powers within the context of its own tasks. The areas of attention of the police and the [Public Prosecution Service] on the one hand and of the AIVD on the other hand, are sometimes in line with one another. The investigative services and the AIVD however each have their own approach towards their investigations, they operate from different perspectives. A criminal investigation is aimed at obtaining evidence on behalf of criminal proceedings. An investigation of the AIVD is on the other hand aimed at timely informing the authorities that are competent to act on any threats against the democratic legal system or threats to the security or other vital interests of the state with the purpose of preventing the harming of these interests. In the case of the leaked state secrets, a story covered by De Telegraaf, it is the investigative services’ task to collect information about the question who stole the state secrets at the BVD and which unauthorised third parties keep or kept possession of the leaked material. The investigation by the AIVD has a different focus, owing to the fact that the AIVD investigates to what extent the integrity and effective functioning of the AIVD have been, and possibly still are being, harmed. In case of a leak of this extent it is, moreover, necessary to find out if possibly more documents have been leaked and where these are, in order to identify the damage for current operational investigations and the danger to human sources and staff of the AIVD. Although the AIVD investigation is not aimed at collecting evidence for criminal proceedings, in performing its task the AIVD may come across information that may also be important for the criminal investigation and prosecution of criminal offences. In that case the AIVD based on [section 38 of the 2002 Intelligence and Security Services Act] has the possibility to make available the information to the [Public Prosecution Service] via an official message to the National Public Prosecutor for Counter-terrorism. In the investigation in hand several official messages were issued to the [Public Prosecution Service].”
40.  The Government summarise the Supervisory Board’s findings as follows: The exercise of special powers by the AIVD in its investigation into the leaking of secret classified information had been lawful (i.e. necessary and in accordance with the law and with the criteria of proportionality and subsidiarity), save for a few exceptions. The tapping of the telephone of one non-target was not in keeping with the requirement of subsidiarity, and transcriptions had been made of various intercepted telephone conversations that were unrelated to the case and were also of no relevance to the performance by the AIVD of its duties. The Supervisory Board also found some transcriptions of intercepted telephone conversations in cases where the Minister had not yet given consent for electronic surveillance. In addition, it discovered that two telephone numbers that had wrongly been attributed to a target of the AIVD had been tapped. The Supervisory Board concluded that despite these lapses the data that had been provided in the official reports had been lawfully obtained.
41.  On 6 December 2006 the Minister transmitted a version of the report cleansed of secret information to the Lower House of Parliament. The forwarding letter (parliamentary year 2006-07, 29 876, no. 19) contains the following:
“The AIVD investigation was intended in the first place to make an assessment of the leaked file and any other leaked documents. Within that framework it was considered necessary, among other things, to use special powers against the journalists of De Telegraaf who were in possession of the leaked file. The use of special powers was not intended directly to identify the journalists’ sources but did indirectly interfere with the journalistic right of source protection. The Supervisory Board has tested the lawfulness of the decisions concerned in the light of the applicable laws and delegated legislation and the above-mentioned requirements of necessity, proportionality and subsidiarity. In so doing the Board has taken into consideration all relevant aspects of the case, including in particular those mentioned above. The Board thus concluded that the decisions to use special powers against the journalists were lawful.”
and
“In my reaction to the supervisory report I have transmitted to your House information which the Supervisory Board has set out in the secret part of its report in accordance with section 8, third paragraph, of the 2002 Intelligence and Security Services Act. This includes the fact, among others, that journalists have lawfully had their telephones tapped. I did not wish to supply this information earlier in the summary injunction and appeal proceedings which have taken place with regard to the present AIVD investigation. My reasons for giving you this information now are connected with the failings found by the Board in the exercise of this special power. Given the interest existing in society for the matter in question and in order to prevent incorrect speculation I consider it necessary that the said facts should be known to the public. I can only provide further operational information concerning the journalists and operational information relating to other persons to the Committee for Intelligence and Security Services (Commissie voor de Inlichtingen- en Veiligheidsdiensten) of the Lower House of Parliament.”
42.  On 3 July 2006, that is while the first and second (criminal and civil) sets of proceedings were still pending, the applicants’ counsel Mr De Kemp wrote to the Minister of the Interior and Kingdom Relations giving notice of a complaint concerning the AIVD’s actions relating to the second and third applicants. In accordance with section 83 of the 2002 Intelligence and Security Services Act (see below), the Minister forwarded the complaint to the Supervisory Board.
43.  On 6 December 2006 the Minister wrote to Mr De Kemp summarising the Board’s findings and advice and expressing his views on the matter (the report itself was not disclosed to the applicants). His letter included the following:
“[Section 6, paragraph 2, sub-paragraph a versus sub-paragraph c]
The leaking of classified AIVD information damages the integrity and functioning of that service and can in so doing endanger the national security for which the AIVD labours. The AIVD has therefore, in the opinion of the Board, rightly initiated an operational investigation within the meaning of section 6, paragraph 2, sub-paragraph a of the 2002 Intelligence and Security Services Act.
The special powers used
The Board considers that the decision to make use of special powers against the journalists of De Telegraaf met the requirements of necessity, subsidiarity and proportionality. In other respects too, the decision to use special powers did not, in the Board’s opinion, give rise to impropriety vis-à-vis De Telegraaf and the other complainants.
The Board is of the opinion that the complaint is unfounded on these two main points.
The way in which the special powers were used
The Board finds that there have been a few lapses (onzorgvuldigheden) in the way in which telephone tapping was resorted to against the journalists. The Board is of the opinion that the way in which this was done should be considered an (implied) part of the complaint of De Telegraaf and the other complainants. After all, the complaint relates to the application of special powers. Such application includes, in the Board’s opinion, the transcription and recording of intercepted conversations. The Board finds that several of the journalists’ conversations have been transcribed and recorded which did not relate to the investigation into the leak within the AIVD and which have no further relevance to the AIVD’s discharge of its duties. Even on initial consideration this ought to have been clear in respect of a (major) portion of these too far-reaching transcriptions. The Board also finds that this information has not been destroyed after having been recorded and considered more closely.
The Board advises [the Minister] to declare the complaint well-founded in respect of this [implied] part of the complaint.
Adulteration (vermenging) with the investigation headed by the Public Prosecution Service
The Board is of the opinion that the use of special powers in the present case fell within the task of the AIVD as set out in section 2, paragraph 2, sub-paragraph a of the 2002 Intelligence and Security Services Act. The special powers have thus not been used for the purpose of the criminal investigation. The Board therefore takes the view that there has been no adulteration of the AIVD investigation with the criminal investigation headed by the Public Prosecution Service. The issuing of official reports (ambtsberichten) in this case cannot lead to the finding that there has been adulteration of tasks and powers between the AIVD and the Public Prosecution Service. After all, this concerns the regular provision of information – which the AIVD has obtained based on its own tasks – to the Public Prosecution Service in accordance with the law in force.
The Board advises [the Minister] to declare the complaint ill-founded on this main point.
Official reports
The Board is of the opinion that the shortcomings found as regards the transcription and recording of the intercepted telephone conversations have no bearing on the lawfulness of the obtention of the information – in so far as these concern (also) the journalists – which have been made available to persons foreign to the service (extern zijn verstrekt) by means of official reports.
My view of the matter
In view of the findings of the Board and in accordance with the advice of the Board I declare the complaint unfounded on the main points, namely as regards the AIVD’s task under section 6, sub-paragraph 2, sub-paragraph a; as regards the decision to use special powers against the journalists of De Telegraaf; and as regards the adulteration of the investigations of the AIVD and the Public Prosecution Service. An implied part of the complaint, namely the transcription and recording of intercepted telephone conversations, I declare well-founded in part.
The recording and transcribing of the conversations was begun one hour too early and the conversations have been partly recorded and transcribed to too great an extent. This has harmed the interests of the journalists because too much information about them has been recorded and this information has been kept by the AIVD for too long. I have not found any circumstances requiring me to deviate from the advice of the Board on any of the parts of the complaint.
The information unlawfully recorded (ten onrechte vastgelegde gegevens) have in the meantime been removed and destroyed. In accordance with the Board’s advice, greater reticence will be exercised in future in transcribing and recording telecommunication with journalists should the situation arise.
Now that I have stated my view of your complaint, you can, if you so wish, lodge your complaint with the National Ombudsman (Nationale ombudsman) in accordance with section 83 of the 2002 Intelligence and Security Services Act.”
44.  On 8 February 2007 the applicants and Nederlandse Vereniging van Journalisten and Nederlands Genootschap van Hoofdredacteuren, through their counsel Mr De Kemp, lodged a complaint with the National Ombudsman asking for an investigation into the AIVD’s conduct. They relied on the views expressed by the Minister of the Interior and Kingdom Relations in his letter to them of 6 December 2006, which in their submission constituted an admission that special powers had actually been used against the second and third applicants.
45.  The National Ombudsman replied on 5 March 2007. He pointed out that the applicants’, and indeed the State’s, appeals on points of law were still pending before the Supreme Court and that he was not empowered to investigate conduct that was the subject of proceedings pending in the civil courts. Moreover, once the Supreme Court delivered its judgment the National Ombudsman was bound to take note of the grounds on which it was based.
46.  The applicants have not pursued their complaint before the National Ombudsman.
47.  The applicants have submitted copies of official reports (ambtsberichten) addressed by the head of the AIVD to the National Public Prosecutor for Counter-terrorism (Landelijke Officier van Justitie Terrorismebestrijding). The copies submitted to the Court bear no dates and identifying information – other than pertaining to the applicants – has been blanked out.
48.  The first of these reports names a former member of the BVD, the AIVD’s predecessor, as having been in possession of State secret documents after having left the service and mentions indications that this person has received a considerable sum of money from “criminal circles”. The second names four members and former members of the BVD and the AIVD who might have had access to copies or originals of the documents handed back by the first applicant. The third report states that the second and third applicants have been in contact with persons connected with the international trade in illegal drugs. The fourth states that, according to information from a “reliable source”, the second and third journalists have tried to establish contact with one H. (understood by the Court to be a person suspected of involvement in the disclosure of AIVD information) with a view to publishing an article about him with his photograph.